The Kanawha County Prosecutor’s Office, which could be responsible for applying criminal penalties under West Virginia’s revived felony abortion law from the 1800s, says in a court filing that it is confident the governor and legislators will clarify state policy.
There are no current or specific plans by the governor or legislators to do so, however.
The prosecutor’s office was responding to a legal challenge to the state’s criminal abortion statute. An injunction hearing is scheduled for 1:30 p.m. Monday in Kanawha Circuit Court.
Lawyers on behalf of the only abortion clinic in West Virginia are arguing that the old law should be considered defunct because of newer laws that presume abortion is legal — and that the old law is so vague that it’s unenforceable.
The prosecutor’s office, which is named as a defendant, expressed confidence in state officials to make West Virginia’s policies clear following the U.S. Supreme Court’s Dobbs ruling that left abortion law to the states. To understand why is such a big legal issue, get assistance with Leppard Law: Criminal defense attorney in brevard county.
“Again, while acknowledging that the plaintiffs have asserted harm because of the ‘confusion’ regarding enforcement of the abortion ban statute, it is likely that in the reasonably foreseeable future, the legislature and governor will participate in a special session which will squarely address and enact legislation regarding the status of abortion in West Virginia post-Dobbs,” prosecutors wrote in their filing.
The filing by the prosecutor’s office does make reference to a public statement by Kanawha Prosecutor Charles Miller that he believes current law is in a state of flux. Right now, the prosecutor said, “there are no referrals under the ban statute.”
The Prosecutor’s Office wrote that “despite any current confusion about enforceability of said statute, such confusion is likely to be clarified when a special session of the Legislature is called to address this issue. Again, anecdotally, Governor Justice has said such a session will be called soon.”
And the Prosecutor’s Office said it “is not predicting whether or not the West Virginia Legislature will ban abortion; instead, whatever statute is passed will clarify the status of the availability of abortion in West Virginia and whether or not abortions are criminalized.”
Gov. Jim Justice has called for a special session later this month — but about tax cuts, rather than about abortion law. During a briefing last week, Justice said he would rather be careful than quick on the abortion law.
“The very best thing I can possibly do is never play games with somebody, never push people into a special session just to make a spectacle for nothing, do the right stuff all the time,” Justice said.
“In this situation the right stuff is to give our Legislature time. It’s a sensitive, sensitive topic. It’s something that’s been in the making for 50 years, and it’s as absolutely so, so difficult because there’s so many sides to so many different aspects. And if we don’t watch out it will become a spectacle. And we don’t want that, do we?”
State Senator Robert Karnes predicted a ruling upholding the motion for injunction in Kanawha Circuit Court this week. And Karnes suggested the entire issue is likely to be appealed to the state Supreme Court.
Karnes, R-Randolph, suggested it might be best for state officials to let the abortion law issues be resolved in the court system before revising state code.
“I think what we’re going to have to do on the abortion law is see what the courts come up with,” Karnes said last week on MetroNews’ “Talkline.”
“I think we all know it’s going to wind up in the state Supreme Court, and we’ll see how they come down — and I’m willing to wait until we hear from them. If they think the law is enforceable as is, I think we can do the work around the edges in the next session. If they were to enjoin that law from being enforced then I think we need to go into a special session.”
Delegate Kayla Young, D-Kanawha, said she believes constituents deserve to know where lawmakers stand.
But she couldn’t predict when or if lawmakers might clarify state policy. “I’ve looked into my crystal ball, and it’s been a little cloudy,” Young said last week on “580 Live” on WCHS Radio.
“I don’t know. I think it’s a pretty political issue. I think the supermajority’s worried that it’s going to bring people on my side out to vote, and I think they’d be correct in that.”
The law on the books in West Virginia dates back to the earliest days of the state. It describes three to 10 years imprisonment for abortion. There is an exception for the life of the mother “in good faith.”
The law says:
Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.
Both the Attorney General and the plaintiffs in the legal challenge to the law have concluded that it could be interpreted for prosecuting not only medical providers but also pregnant women and those who provide assistance in getting an abortion.
Loree Stark, legal director for American Civil Liberties Union of West Virginia, told a crowd of protesters at the Capitol this month that the state law is “not only archaic, it’s cruel.”
“The statute itself is so broad, it’s almost impossible to determine what conduct it criminalizes,” Stark said.
“And we’ve watched this Legislature over the past several years pass restriction after restriction on abortion. So the question is now, how can there be this law from the 1800s on the books that completely criminalizes abortion — how can that exist with these other restrictions that the Legislature has passed over the past over the last few years?”